Border agency force-use report released

The U.S. Customs and Border Protection agency on Friday released a use-of-force study by an outside group that recommended changes to a range of policies from shooting at vehicles and rock throwers to how investigations are conducted.

The report, by the Police Executive Research Forum, was delivered to the agency in February 2013 but was not publicly released until now.

In a statement, the agency said it was doing so now as part of an emphasis on transparency from its new commissioner, R. Gil Kerlikowske.

The agency also released a revised handbook for agents and officers on the use of force that incorporated the recommendations in the report.

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While that handbook adopts many of the recommendations from the study, it does not exactly copy the stricter standards for when officers and agents can use deadly force in incidents involving vehicles and rock throwers. Those are two of the most controversial subjects for which agents with the U.S. Border Patrol and customs have been criticized for using deadly force.

The release of the study comes just a week after the American Civil Liberties Union of San Diego and Imperial Counties filed a lawsuit in federal court asking for a copy. The customs agency had resisted mounting pressure over the past year from civil rights groups and some elected officials to publish it.

San Diego has been the scene of several controversial incidents involving the Border Patrol and Customs and Border Protection officers. Four years ago a 42-year-old Mexican man, Anastasio Hernandez Rojas, died after being beaten and Tasered while handcuffed by agents and officers in a struggle at the San Ysidro border crossing. His family is now suing in federal court.

In September 2012 Valerie “Munique” Tachiquin Alvarado was shot to death by a Border Patrol agent. Investigators said she struck an agent with her car as she tried to flee, but her family disputes that account in another lawsuit filed in federal court.

Both incidents were likely considered in the study, which reviewed 67 use-of-force incidents by the agency from 2010 through October 2012 but did not list them.

Overall the study found improvements were needed across the spectrum of agency policy — initial reports, investigations, incident reviews, training and equipment.

It said it found “a number of concerns” in cases involving rock throwers and shots fired at vehicles.

The review recommended that agents and officers should be prohibited from firing at vehicles unless vehicle occupants are attempting to use deadly force — other than the vehicle — against the agent.

The policy in the handbook is stated differently. It says deadly force can be used when there is a fear of imminent injury or death, and that “may include a moving vehicle aimed at officer/agents or others present.”

Eugene Iredale, the lawyer for the Tachiquin family, said he was disappointed the policy in the handbook had “watered down” the recommendation in the report.

For rock throwing incidents the difference is more subtle. The report recommended a policy that flatly prohibited using deadly force against people throwing objects that are “not capable of causing serious physical injury or death.”

The handbook ended up saying deadly force is allowed when an officer or agent has a “reasonable belief” they are in danger of serious injury or death based on the “totality of the circumstances.”

Critics of border law enforcement have said that shooting in response to a rock throwing incident is unwarranted. The Border Patrol has said rocks can kill or maim agents, who get pelted regularly in some parts of the border.

Shawn Moran, a Border Patrol agent and vice president of the union for agents, said rejecting the recommendations in the report in those two areas was warranted. The union had objected to them strongly.

“They seemed to think that unless someone is shooting at you from a vehicle, you can’t fire at it,” he said of the study. “And rocks can and will kill people. This gives agents the flexibility of defending themselves in the unique law enforcement environment that the border is.”

The study said that in some cases shootings were the result of “frustration” by agents at rock throwers, and faulted agents for “unnecessarily putting themselves in positions that expose them to higher risk.”

Andrea Guerrero of the advocacy group Alliance San Diego, which has been critical of the agency, said Friday the report and new handbook are improvements.

“Most if not all of the recommendations are included in the new handbook,” she said. “That is a vast improvement over the old handbook. But the proof will be in the pudding. Will they put into practice what they have now written down as policy?”

The study said incidents in which shots were fired but no injuries were confirmed were not thoroughly investigated or evaluated by the agency. And it said it wasn’t clear that the agency reviews all use of force incidents clearly and consistently.

The report also recommends a greater array of “less lethal” weapons for law enforcement and better training. The handbook makes a change in policy to the use of Tasers — which have been involved in several deaths such as the Hernandez case — by specifying they cannot be used on handcuffed people, and only used when someone is “actively resisting.”

The report also recommended, and the agency adopted, a new standardized system for reviewing all use of force incidents.